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Collegium controversy

An unusual change of decision brings the judicial appointments system under scrutiny
The controversial collegium system of judicial appointments is under public scrutiny once again.
This time, the potential for embarrassment to the superior judiciary is much higher.
Former Chief Justices of India, a sitting Supreme Court judge, and the Bar Council of India have taken exception to the collegium’s unusual action of revisiting decisions made at an earlier meeting, and recommending the elevation to the apex court of Justice Dinesh Maheshwari and Justice Sanjiv Khanna, instead of two judges whose names had been considered earlier.
The allegation is not merely one concerning the seniority or the lack of it of the two appointees; rather, it is the much graver charge of arbitrarily revoking a decision made on December 12 last year. • The official reasons are in the public domain in the form of a resolution on January 10.
It claims that even though some decisions were made on December 12, “the required consultations could not be undertaken and completed” in view of the winter vacation.
When the collegium met again on January 5/6, its composition had changed following the retirement of Justice Madan B. Lokur.
It was then decided that it would be “appropriate” to have a fresh look at the matter, as well as the “additional material”.
The only rationale for the names of Rajasthan High Court Chief Justice Pradeep Nandrajog and Delhi High Court Chief Justice Rajendra Menon being left out is the claim that new material had surfaced.
However, it is not clear what the material is and how it affected their suitability.
Former Chief Justice of India R.M. Lodha is right in underscoring the institutional nature of decisions by the collegium.
Can the retirement of one judge be a ground to withdraw a considered decision, even if some consultations were incomplete? There is little surprise in the disquiet in legal circles.
Another curious element in the latest appointments is that Justice Maheshwari, who had been superseded as recently as last November, when a judge junior to him was appointed a Supreme Court judge, has been found to be “more suitable and deserving in all respects” than any of the other chief justices and judges
There is no objection to the elevation of Justice Khanna except his relative lack of seniority.
There is little substance in this criticism, as it is now widely accepted that seniority cannot be the sole criterion for elevation to the Supreme Court.
However, the fact that there are three other judges senior to him in the Delhi High Court itself — two of them serving elsewhere as chief justices — is bound to cause some misgivings.
The credibility of the collegium system has once again been called into question.
The recent practice of making public all resolutions of the collegium has brought in some transparency.
Yet, the impression that it works in mysterious ways refuses to go away.
This controversy ill-serves the judiciary as an institution.

Learning little

The reading and arithmetic abilities in rural schools are shockingly dismal
The latest assessment of how children are faring in schools in rural areas indicates there has been no dramatic improvement in learning outcomes.
The picture that emerges from the Annual Status of Education Report, Rural (2018) is one of a moribund system of early schooling in many States, with no remarkable progress from the base year of 2008. Except for a small section at the top of the class, the majority of students have obviously been let down.
ASER stands for Annual Status of Education Report. This is an annual survey that aims to provide reliable annual estimates of children’s schooling status and basic learning levels for each state and rural district in India. ASER has been conducted every year since 2005 in almost all rural districts of India. ASER is the largest citizen-led survey in India. It is also the only annual source of information on children’s learning outcomes available in India today.
Unlike most other large-scale learning assessments, ASER is a household-based rather than school-based survey. This design enables all children to be included – those who have never been to school or have dropped out, as well as those who are in government schools, private schools, religious schools or anywhere else.
In each rural district, 30 villages are sampled. In each village, 20 randomly selected households are surveyed. This process generates a total of 600 households per district, or about 300,000 households for the country as a whole. Approximately 600,000 children in the age group 3-16 who are resident in these households are surveyed.
The survey for 2018 had a reach of 5.4 lakh students in 596 rural districts.
It should put administrators on alert that while 53.1% of students in Class 5 in rural government schools could in 2008 read a text meant for Class 2, the corresponding figure for 2018 stood at 44.2%;
For comparison, private schools scored 67.9% and 65.1% for the same test in those years. Arithmetic ability showed a similar trend of underperformance, although there has been a slight uptick since 2016: an improvement of about 1.5 percentage points in government schools and 1.8 percentage points in private institutions, among Class 5 students.
Himachal Pradesh, Punjab, Kerala and Haryana did better on the arithmetic question with over 50% students clearing it, compared to Uttar Pradesh, Madhya Pradesh, Rajasthan and even Karnataka, which scored below 20%.
A significant percentage of students were not even able to recognise letters appropriate for their class, highlighting a severe barrier to learning.
Now that the ASER measure is available for 10 years, the Centre should institute a review mechanism involving all States for both government and private institutions, covering elementary education and middle school.
A public consultation on activity-based learning outcomes, deficits in early childhood education, and innovations in better performing States can help.
At present, children start learning in a variety of environments: from poorly equipped anganwadi centres to private nurseries.
The enactment of the Right to Education Act was followed by a welcome rise in enrolment, which now touches 96% as per ASER data.
Empowering as it is, the law needs a supportive framework to cater to learners from different backgrounds who often cannot rely on parental support or coaching.
There is concern that curricular expectations on literacy and numeracy have become too ambitious, requiring reform.
It is worth looking at innovation in schools and incentivising good outcomes;
one study in Andhra Pradesh indicated that bonus pay offered to teachers led to better student scores in an independently administered test in mathematics and language.
The solutions may lie in multiple approaches.
What is beyond doubt is that governments are not doing their duty by India’s children.

The view from the outside

As a democracy, India must have a better record of upholding human rights
The role that India can and should play on the world stage is a topic that elicits much excitement and, of late, hyper-nationalism.
It is often stated that it is time for India, as the world’s largest democracy, to take on an increasingly significant mantle in the international realm.
Aspects such as economic and military power have been the usual focus of this debate.
However, an important component of this enhanced stature necessarily relates to the safeguarding and protecting of human rights.
In India, there is a blind spot in relation to rights and the intersection with foreign relations and policy discussions, and ignoring this has its perils.

Track record on human rights

Recently, India’s Deputy Permanent Representative to the United Nations expressed concern over the “politicisation of human rights as a foreign policy tool”, while addressing the work of the UN and the Human Rights Council.
If part of the argument that India seeks to make is that it is a torchbearer of democracy and should therefore have a greater say, including on issues such as UN reform, an integral part of the case to be made relates to upholding international laws and standards pertaining to human rights. ▪So, how does this stand up to scrutiny?
Within the country, many lawyers, activists, academics and human rights organisations have pointed to the deteriorating climate in relation to human rights.
But how is the track record on human rights perceived outside the country, particularly by international law and human rights experts appointed as part of the UN human rights machinery?
It is instructive to assess the record of UN independent experts towards India. • For clarity, this assessment excludes the Human Rights Council, made of a group of states which can run the risk of allegations of partisanship based on membership.
Instead, only statements of UN Independent Experts or Special Rapporteurs are examined, being thematic or subject matter experts on specific aspects of law (such as freedom of expression, extrajudicial executions, human rights defenders, etc.).

Negative statements

On January 11, four UN Special Rapporteurs — on summary executions, torture, freedom of religion, and the situation of human rights defenders — issued a statement drawing attention to “extrajudicial” killings in Uttar Pradesh. In a strongly worded call, the UN experts expressed concern about the “patterns of events”, including arrest, detention and torture prior to summary executions of 59 individuals since March 2017. This enhanced and negative scrutiny by Independent Experts follows on the heels of the first ever UN report on human rights violations in Kashmir, conducted by the Office of the High Commissioner for Human Rights — an indicator of how far the situation has deteriorated, as well as the inevitable enhanced scrutiny.
A review of the press releases by the UN human rights office from 2010 to date shows that there have been 26 critical statements (mostly by UN experts, with some by the UN High Commissioner for Human Rights). ▪Nine were issued in 2018, which was the year that saw the highest number of negative statements on India in the period examined.
The statements have dealt with a number of issues, including the Assam National Register of Citizens process (in photo), online hate speech, the killing of journalist Gauri Lankesh, jailing of human rights defenders, deportation of Rohingya refugees, and excessive police response to protests.
These statements indicate a few things.
First, there has been enhanced scrutiny by international experts of the deteriorating human rights environment in India, particularly in 2018.
Second, the magnification of domestic rights violations in the international sphere is inevitable. •Third, the metric of human rights and compliance with international law cannot be dismissed.
Inevitably, there will be the counterarguments, many of which can be addressed.
Yes, this is not a comparison to other countries, but based on self-made claims of enhanced stature in the international arena — so how we fare in the eyes of international experts is important. • No, this is not a question of external interference which can be dismissed out of hand — these statements are extremely serious, not issued lightly and are an integral part of the machinery of accountability for human rights violations in the international realm and will be a part of India’s human rights record for posterity.

India’s record of upholding human rights is abysmal; it must do better

The primary consideration should be the welfare and rights of individuals within the purview of the state.
The secondary consideration should be perception and the place that India wants for itself in terms of stature and prestige.
From both perspectives, the respect of the rights of individuals must be non-negotiable.

Balancing act in Afghanistan

India should be informed of the developments in the peace process for which the U.S. is taking Pakistan’s help
In recent weeks, a new policy conundrum has emerged for the U.S. as it attempts to help launch a peace process in Afghanistan.
Soon after the U.S. government formally requested Pakistan’s assistance to bring the Taliban to the table, Islamabad helped facilitate meetings between senior Taliban representatives and U.S. officials in Abu Dhabi.
The U.S. government appears to be acknowledging that Pakistan, given its influence over the Taliban, is an important and potentially helpful player in the peace process in Afghanistan.
However, it has also signalled its desire for India, its growing defence partner, to be more involved in reconciliation efforts and in Afghanistan more broadly.
At various times during his term, President Donald Trump — sometimes crudely, as with his mocking comment about New Delhi limiting itself to building libraries in Afghanistan — has suggested that New Delhi step up its game.
The recent visit to India of Zalmay Khalilzad, the U.S. Special Representative for Afghanistan Reconciliation, highlights the importance that Washington accords to India in Afghanistan.
Herein lies the dilemma: the U.S. cannot have it both ways.
If Pakistan is enlisted in reconciliation efforts, India won’t be keen to get involved. But if India does take on a larger role, then Pakistan may well step back.
To be sure, India and Pakistan have proved to be willing and able to partner regionally. They may struggle to coexist in SAARC, but they do cooperate on the TAPI pipeline, and they’re both members of the Shanghai Cooperation Organisation, an arrangement mostly of Central Asian states, and China and Russia.
The Turkmenistan– Afghanistan–Pakistan–India Pipeline (TAPI), also known as Trans-Afghanistan Pipeline, is a natural gas pipeline being developed by the Galkynysh – TAPI Pipeline Company Limited with participation of the Asian Development Bank.

The pipeline will transport natural gas from the Galkynysh Gas Field in Turkmenistan through Afghanistan into Pakistan and then to India

Of course, partnering in Afghanistan is much more delicate and challenging.
Fortunately for the U.S., this policy dilemma may work itself out on its own.
Despite Prime Minister Narendra Modi’s desire for a more robust regional foreign policy, India appears content to keep a low profile in Afghanistan, outside of its continued development and economic assistance projects.
Tellingly, New Delhi has distanced itself from the Indian Army Chief’s remark supporting talks with the Taliban with no preconditions.
Additionally, India will not volunteer to play a role in reconciliation efforts unless formally invited by Kabul.
Afghan officials, grudgingly cognisant of Pakistan’s significant role, are unlikely to do so unless current efforts to kick-start talks do not bear fruit, or Pakistan is no longer seen as helpful.
Still, it is important that India not be left on the outside looking in amid efforts to spark a reconciliation process with such major implications for it.
Accordingly, the U.S. should keep India fully informed, at the highest levels, about any developments in reconciliation. U.S. officials owe that engagement to one of their most important partners in South Asia.